As you will see, a lawsuit requires a lot of paperwork. There are two basic papers for starting any federal lawsuit: a summons and a complaint. They are described in Part 1, below.

If you have little or no money, you will also want to request that the court allow you to sue “in forma pauperis,” which is Latin for “as a poor person.” Filing that way gives you more time to pay the court filing fee. In forma pauperis papers are described in Part 2.

You will also probably want to ask the court to appoint a lawyer for you, and this is described in Part 3.

Eventually, you may want to submit declarations to present additional facts in support of your complaint. Declarations are described in Part 4 of this Section.

Lawyers write legal papers a certain way, which is different from how people ordinarily write. But don’t be intimidated! This does not mean that you need to use legal jargon, or try to sound like a lawyer. Judges do not expect or want prisoners who are not lawyers to write like lawyers. It is best to just write simply and clearly. Do not worry about using special phrases or fancy legal words.

This chapter will include forms for some of the basic documents that you will need. There are additional forms in Appendix D, and a sample complaint in Appendix B. The forms and examples in this chapter show only one of the many proper ways to write each type of paper. Feel free to change the forms to fit your case. If you have access to copies of legal papers from someone else’s successful Section 1983 lawsuit, you may want to follow those forms instead.

If you need a legal paper that is not covered by this chapter, Chapter Six, or Appendix B or D, you may want to see if your prison library has a book of forms for legal papers. Two good books of forms for federal suits are: Moore’s Manual-Federal Practice Forms and Bender’s Federal Practice Forms. Some U.S. District Courts have special rules about the form your legal papers should follow – like what kind of paper to use, what line to start typing on and what size type to use. You will find these rules in the Local Rules you request from your district court. Some courts have more rules than others and unfortunately, the rules vary a lot from court to court.

Most district courts also have a packet of forms that it will send for free to prisoners who want to file actions pro se (without a lawyer). You can write a letter to the court clerk explaining that you are a prisoner and are requesting forms for a 42 U.S.C. § 1983 action. The court may or may not require you to use their forms. If you can get these forms, use them. They are the easiest way to file a complaint! With or without the forms, you will need to be sure to include all of the information described below. It is a good idea to request both the Local Rules and the Section 1983 forms before you start trying to write your complaint.

Generally, you should type if you can. Large type is best. Check with the local court rules to see if you need to use a particular type or length of paper. Type or write on only one side of each sheet, and staple the papers together.
Try to follow the forms in this chapter and the local rules for your district. But don’t let these rules stop you from filing your suit. Just do the best you can. If you can’t follow all the rules, write the court a letter that explains why. For example, you can tell the court that you were not allowed to use a typewriter, or you could not get the right paper. The courts should consider your case even if you do not use the correct form. When a prisoner files a lawsuit without help from a lawyer, the federal courts will even accept handwritten legal papers.

Be sure to put your name and address at the top left hand corner of the first page of your complaint and any motion you submit. All the prisoners who bring the suit should sign the complaint. At least one should sign each motion.

1. Summons and Complaint

You start a Section 1983 suit by mailing two legal documents called a “complaint” and a “summons” to the appropriate U.S. District Court. Both documents will also have to be “served” or given to, the defendants. Service is very important, and is explained in Section D below.

THE COMPLAINT

The complaint is the most important document in your lawsuit. In it, you describe your lawsuit. You explain who you are (plaintiff), who you are suing (defendants), what happened (factual allegations), what laws give the court the power to rule in your favor (legal claims), and what you want the court to do (relief). If your complaint does not meet all the requirements for a Section 1983 or Bivens lawsuit, your suit could be dismissed at the very start.

Getting all the right facts down in your complaint can be difficult, but is very important. Chapter Seven has some legal research and writing tips that may help you write your complaint.

Below, we explain each part of a complaint. In Appendix B, you will find an example of a complaint in a made-up case. We recommend that read the form complaint, explanation and sample complaint before you try to write your own. Yours should be on a full sheet of paper (like the sample in Appendix B), not in two columns like the complaint form explained here.

You can copy the parts of this form that are appropriate for your suit, and add your own facts to the italicized sections. If part of a paragraph here doesn’t apply to your suit, don’t include it. Each paragraph in your complaint should be numbered, starting with the number “1.” The letters (A) through (J) in grey by each section should not be included in your complaint. They are just there for your reference, so that you will be able to tell which part of the complaint we are talking about in the explanation below.

UNITED STATES DISTRICT COURT (A)
————————————–x
Names of all the people bringing the suit,
Plaintiff[s],

v.

Names of all the people the suit is against, individually and in their official capacities,
Defendant[s]
—————————————x

I. JURISDICTION & VENUE (B)

1. This is a civil action authorized by 42 U.S.C. Section 1983 to redress the deprivation, under color of state law, of rights secured by the Constitution of the United States. The court has jurisdiction under 28 U.S.C. Section 1331 and 1343 (a)(3). Plaintiff seeks declaratory relief pursuant to 28 U.S.C. Section 2201 and 2202. Plaintiff’s claims for injunctive relief are authorized by 28 U.S.C. Section 2283 & 2284 and Rule 65 of the Federal Rules of Civil Procedure.

2. The [name of district you are filing your suit in] is an appropriate venue under 28 U.S.C. Section 1391 (b)(2) because it is where the events giving rise to this claim occurred.

II. PLAINTIFFS (C)

3. Plaintiff, [your full name], is and was at all times mentioned herein a prisoner of the State of [state] in the custody of the [state] Department of Corrections. He/she is currently confined in [name of prison], in [name of City and State].

III. DEFENDANTS (D)

4. Defendant, [full name of head of corrections department] is the [Director / Commissioner] of the state of [state] Department of Corrections. He is legally responsible for the overall operation of the Department and each institution under its jurisdiction, including [name of prison where plaintiffs are confined].

5. Defendant, [warden’s full name] is the [Superintendent / Warden] of [name of prison]. He is legally responsible for the operation of [name of prison] and for the welfare of all the inmates in that prison.

6. Defendant, [guard’s full name] is a Correctional Officer of the [state] Department of Corrections who, at all times mentioned in this complaint, held the rank of [position of guard] and was assigned to [name of prison].

7. Each defendant is sued individually and in his [or her] official capacity. At all times mentioned in this complaint each defendant acted under the color of state law.

III. FACTS (E)

8. State IN DETAIL all the facts that are the basis for your suit. You will want to include what happened, where, when, how and who was there. Remember that the judge may know very little about prison, so be sure to explain the terms you use. Divide your description of the facts into separate short paragraphs in a way that makes sense – by time, date, or event.

9. You may want to include some facts that you do not know personally. It may be general prison knowledge, or it may be information given to you by people who are not plaintiffs in your lawsuit. It is OK to include this kind of information, but you need to be sure that each time you give these kinds of facts, you start the paragraph with the phrase “Upon information and belief.” If you include such facts, you must have a good faith basis for believing them to be true.

10. You can refer to documents, affidavits, and other materials that you have attached at the back of your complaint as “exhibits” in support of your complaint. Each document or group of documents should have its own letter: “Exhibit A,” “Exhibit B” etc.

IV. EXHAUSTION OF LEGAL REMEDIES (F)

11. Plaintiff [name] used the prisoner grievance procedure available at [name of institution] to try and solve the problem. On [date filed grievance] plaintiff [name] presented the facts relating to this complaint. On [date got response] plaintiff [name] was sent a response saying that the grievance had been denied. On [date filed appeal] he/she appealed the denial of the grievance.

V. LEGAL CLAIMS (G)

12. Plaintiffs reallege and incorporate by reference paragraphs 1 – 11 [or however many paragraphs the first four sections took].

13. The [state the violation, for example, beating, deliberate indifference to medical needs, unsafe conditions, sexual discrimination] violated plaintiff [name of plaintiff]’s rights and constituted [state the constitutional right at issue, for example, cruel and unusual punishment, a due process violation] under the [state the number of the Constitutional Amendment at issue, like Eighth or Fourteenth] Amendment to the United States Constitution.

14. The plaintiff has no plain, adequate or complete remedy at law to redress the wrongs described herein. Plaintiff has been and will continue to be irreparably injured by the conduct of the defendants unless this court grants the declaratory and injunctive relief which plaintiff seeks.

VERIFICATION (J)
I have read the foregoing complaint and hereby verify that the matters alleged therein are true, except as to matters alleged on information and belief, and, as to those, I believe them to be true. I certify under penalty of perjury that the foregoing is true and correct.

Executed at [city and state] on [date]

Signature
Type name of plaintiff

Explanation of Form:

Part (A) is called the “caption.” It looks strange, but it is how courts want the front page of every legal document to look. There is no one right way to do a caption, so you should check your court’s local rules to see what they want. The top line is the name of the court. You will have already figured out where you are filing your lawsuit by reading Section B of this chapter, and referring to Appendix L. If you are suing in the Western District of New York, where many New York prisons are, you would insert those exact words “Western District of New York” where the blank is. In the example in Appendix B, the prisoners are suing in the Northern District of Illinois.

Inside the caption box, you need to put the full names of all the plaintiffs, and the full names and titles of all the defendants. Think carefully about the discussion in Chapter Four about who you can sue. Remember to write that you are suing them in their “official capacity,” if you want injunctive relief, and their “individual capacity” if you want money damages. The plaintiffs and defendants are separated by the letter “v” which stands for “versus” or “against.” Across from the box is the title of your document. Each document you file in your case will have a different title. This is a “Complaint,” so title it that. Under the title is a place for your civil action number. Leave that line blank until you are assigned a number by the court. You will get a number after you file your complaint.

Part (B) is a statement of the court’s jurisdiction (paragraph 1) and venue (paragraph 2). Jurisdiction really means “power.” Federal courts are courts of “limited jurisdiction.” This means they can only hear cases that Congress has said they should hear. For the purposes of a complaint, all you have to understand about jurisdiction is what statutes to cite. If you are filing a Bivens action instead of a Section 1983 action, say so in the first sentence. All prisoners bringing Section 1983 or Bivens suits should cite 28 U.S.C. Section 1331 and 1343 (a)(3) in this paragraph. The other statutes you cite depend on what kind of case you are bringing:

If you are seeking declaratory relief (see Chapter Four, Section A), you should include a sentence stating “Plaintiffs seek declaratory relief pursuant to 28 U.S.C. Section 2201 and 2202.”

If you are seeking injunctive relief (see Chapter Four, Section B) you should include a sentence stating “Plaintiff’s claims for injunctive relief are authorized by 28 U.S.C. Section 2283 & 2284 and Rule 65 of the Federal Rules of Civil Procedure.”

If you have included state law claims in your complaint you should include a sentence stating, “The court has supplemental jurisdiction over plaintiff’s state law claims under 28 U.S.C. Section 1367.”

If you are including Federal Tort Claims Act claims (explained in Chapter 2, Section C) you should include a sentence stating: Plaintiffs’ Federal Tort Claims Act claims are authorized by 28 U.S.C. Section 1346.

Part (C) is a list of the plaintiffs in the lawsuit. This may just be you. Or, you may have decided to file suit with other prisoners who are having or had similar problems. In this paragraph, you should tell the court who you are, and where you are incarcerated. If you are bringing an equal protection claim (described in Chapter Three), you may also want to include your race, ethnicity, or gender. Each plaintiff should get their own paragraph. If there are differences in each plaintiff’s situation then you need to note that. For example, one plaintiff could have been released since the event occurred. If you or any of the other plaintiffs were transferred from one facility to another since the events occurred, indicate where you were at the time of the event, and where you are now.

Part (D) is a list of potential defendants and their titles. Those listed are just examples. You may sue more people or less people, so delete or add additional paragraphs in your complaint. The defendants may be all guards, or all supervisors. As explained above, you will need to put careful thought into who you are suing, and whether to sue them in their official or individual capacity. Only sue people who were actually involved in violating your rights! You will also want to include a statement for each defendant of their role at the prison. Generally, this just means stating a defendant’s job duties. You must be sure to include the statement in the final paragraph of this section: that “at all times, each defendant acted under color of state law.” (See Paragraph 7 in the form complaint). As you may remember from Chapter Two, Section A, this is one of the requirements for Section 1983 actions.

Part (E) is the factual section of your complaint. It is very important, and can be very rewarding if done well. It is your chance to explain what happened to you. In this section, you must be sure to state (or “allege”) enough facts to meet all the elements of your particular claim. This can be a very big task. We would suggest that you start by making a list of all the claims you want to make, and all the elements of each claim.

For example, in Chapter Three, Section F, Part 1, you learned that an Eighth Amendment claim based on guard brutality requires a showing that:

(1) you were harmed by a prison official;
(2) the harm caused physical injury (necessary for money damages under PLRA); and
(3) the guard’s actions were not necessary or reasonable to maintain prison discipline.

This means that in your complaint, you will need to state facts that tend to show that each of these three factors is true. It is fine to state a fact that you believe is true but don’t know to be true through personal knowledge, as long as you write “upon information and belief” when stating it as a fact.

This is the section where you can refer to “exhibits,” if you have any. Read through this chapter to get an idea of the types of documents you can submit as exhibits and how to number them. Then, when you write this section (factual section) of your complaint, you can use phrases like “Refer to Exhibit A” to help illustrate and support your facts.

In the factual section, you must include facts that show how each defendant was involved in the violation of your rights. If you do not include facts about a certain defendant, the court will probably dismiss your claim against that person. (Refer to Chapter Seven for more legal research and writing tips.)

Part (F) is a statement that you have exhausted your administrative remedies by using the prison grievance system. In the first part of this chapter, we discussed “exhaustion” and the case Jones v. Bock, where the Supreme Court decided that you don’t have to show in your complaint that you exhausted all remedies. However, it’s still a good idea to include all the steps you have taken to exhaust your complaint, and if you can, attach copies of your grievance and appeal forms as exhibits.

Part (G) is where you state your legal claims, and explain which of your rights were violated by each defendant. In all complaints, you need to be sure to include the sentence in Paragraph 12 so you do not have to restate all the facts you have just laid out. You should have one paragraph for each individual legal claim. For example, if you feel that prison officials violated your rights by beating you and then denying you medical care, you would want to list these two claims in two separate paragraphs. If all the defendants violated your rights in all the claims, you can just refer to them as “defendants.” If some defendants violated your rights in one way, and others in another way, then refer to the defendants individually, by name, in each paragraph. Here is an example:

Defendant Greg Guard’s use of excessive force violated plaintiff’s rights, and constituted cruel and unusual punishment under the Eighth Amendment of the United States Constitution.

Defendants Ned Nurse, Darla Doctor and Wilma Warden’s deliberate indifference to plaintiff’s serious medical needs violated plaintiff’s rights, and constituted cruel and unusual punishment under the Eighth Amendment of the United States Constitution.

Paragraph 14 is only necessary if you are applying for declaratory or injunctive relief. You should include that sentence in any complaint that requests an injunction or a declaratory judgment.

Part (H) is where you tell the court what you want it to do. You can ask for a declaration that your rights were violated, an injunction, money damages, costs, and anything else the court thinks is fair. What is written there is just an example.

Include Paragraph 15, requesting a declaratory judgment, if that is at least part of the relief you want.

Include Paragraph 16, requesting injunctive relief, only if you are eligible for injunctive relief. You should review Chapter Four, Section B on injunctive relief before writing this section. If you request an injunction, spend some time thinking about what it is you actually want the prison to do or stop doing. Be creative but also specific. Make sure that the injunction you request is related to a continuing violation of your rights. In the example in Appendix B Plaintiff Abdul does not ask for an injunction, because his rights were only violated once. Plaintiff Hey, however, is experiencing continuing violence, so it is appropriate for him to seek an injunction.

You need paragraphs 17 and 18 if you are requesting money damages. Review Chapter Four, Section C on damages before writing this section. You should think carefully about how much money you want in compensatory and punitive damages. If you cannot figure out how much to ask for, just request compensatory and punitive damages without including a dollar amount.

Part (I) is where you sign and date the complaint. You must always sign a legal document.

Part (J) is a “verification.” This part is optional. You do not have to verify a complaint, but it is best if you do. If you verify your complaint, you can use your complaint as evidence if the defendants file a motion for summary judgment against you (see Chapter Six, Section F) or to support your request for a temporary restraining order (see Section E of this Chapter). When you verify a complaint, you are making a sworn statement that everything in the complaint is true to the best of your knowledge. Making a sworn statement is like testifying in court. If you lie, you can be prosecuted for perjury.

Remember, you need to tell the truth in an “unverified” complaint as well.

Amended Complaints

If you want to change your complaint after you have submitted it, you can submit an “amended complaint” which follows the same form as your original complaint, but with “Amended Complaint” as the title. An amended complaint must be about the same basic events. You might want to amend a complaint if you want to change who some of the defendants are, ask the court to do slightly different things, add or drop a plaintiff, or change your legal claims. You also might discover that you need to make some changes in order to avoid having your complaint dismissed. See Chapter Six, Section C.

When and how you can amend your complaint is governed by Rule 15 of the Federal Rules of Civil Procedure. You have a right to amend one time before the defendants submit an Answer (explained later in this Chapter) in response to your complaint. You need the court’s permission, or the consent of the defendants, to submit a second amended complaint or to submit any amendment after the prison officials have filed an Answer. According to the Federal Rules of Civil Procedure Rule 15(a), the court should grant permission “freely… when justice so requires.”

You might also want to change your complaint to tell the court about events that happened after you filed it. The guards might have beaten you again, confiscated your books, or placed you in an isolation cell. This is called a “supplemental complaint.” Your right to file a supplemental complaint is governed by Federal Rules of Civil Procedure Rule 15(d). The court can let you submit a supplemental complaint even if your original complaint was defective. The supplemental complaint also follows the same form as your original complaint but you will use “Supplemental Complaint” as the title.

THE SUMMONS

Along with your complaint, you must submit a “summons” for the court clerk to issue. The summons notifies the defendants that a suit has been started against them and tells them by when they must answer to avoid having a judgment entered against them. A summons is much easier than a complaint.

You will notice that the caption (Part A) is the same as the one you did for your complaint. All you need to do is follow this form:

IN THE UNITED STATES DISTRICT COURT FOR THE (A).
————————————–x
Names of all the people bringing the suit,
Plaintiff,

v.

Names of all the people the suit is against, individually and in their official capacities,
Defendants
—————————————x

SUMMONS Civil Action No.__

TO THE ABOVE-NAMED DEFENDANTS:
You are hereby summoned and required to serve upon plaintiffs, whose address is [your address here] an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service, or 60 days if the U.S. Government or officer / agent thereof is a defendant. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

Clerk of the Court

Date: ____________

Leave the date line under “Clerk of the Court” blank, the clerk will fill it out for you. We explain how this works in section D, on service, below.

2. In Forma Pauperis Papers

As of this printing, the federal courts charge $350 for filing a lawsuit. It costs more if you want to appeal the court’s decision. If you can’t afford these fees, you will usually be allowed to pay them in installments by proceeding “in forma pauperis,” which is Latin for “as a poor person.” If you are granted this status, court fees will be taken a little at a time from your prison account. Before the PLRA, the court could let you proceed without paying for filing or service. However, this is no longer possible. Now you must eventually pay the entire filing fee. If you win your suit the court will order the defendants to pay you back for these expenses.

The legal basis for suing in forma pauperis is Section 1915 of Title 28 of the United States Code. To request this status, you will need to file an Application to Proceed in Forma Pauperis. You must request this form from the district court clerk before filing your complaint because each court has a different application.

You will also need to file a Declaration in support of your application. The form for this Declaration will probably be sent to you in the pro se packet, but in case it is not, use the following example.

The court clerk should send you paperwork to fill out regarding your prison account. You will also need to file a certified copy of your prison account statement for the past six months. Some prisoners have experienced difficulty getting their institution to issue this statement. If you are unable to get a copy of your prison account statement, include in your Declaration an explanation of why you could not get the account statement.

Again, only use the example Declaration below if you cannot get the Declaration form required by your district court clerk’s office. If you have to use this Declaration, copy it exactly, and fill in your answers, taking as much space as you need.

Note that this is only the Declaration that you send along with your Application to Proceed in Forma Pauperis, it is not the actual Application, which you need to request from your district court.

In Forma Pauperis Declaration:

IN THE UNITED STATES DISTRICT COURT FOR THE (A)
————————————–x
Name of the first plaintiff, et al.,
Plaintiff,

v.

Name of the first Defendant, et al
Defendants
—————————————x

DECLARATION IN SUPPORT OF MOTION TO PROCEED IN FORMA PAUPERS
Civil Action No.:___

I, ________________, am the petitioner / plaintiff in the above entitled case. In support of my motion to proceed without being required to prepay fees or costs or give security therefore, I state that because of my poverty I am unable to pay the costs of said proceeding or to give security therefore, and that I believe I am entitled to redress.

I declare that the responses which I have made below are true.

1. If you are presently employed, state the amount of your salary wage per month, and give the name and address of your employer ____________________________. (B)

2. If you are not presently employed state the date of last employment and amount of salary per month that you received and how long the employment lasted.

3. Have you received, within the past twelve months, any money from any of the following sources:
a. Business, profession or form of self-employment? YES___ NO ___
b. Rent payments, interest or dividends? YES___ NO ___
c. Pensions, annuities, or life insurance payments? YES___ NO ___
d. Gifts or inheritances? YES___ NO ___
e. Any form of public assistance? YES___ NO ___
f. Any other sources? YES___ NO ___

If the answer to any of questions (a) through (f) is yes, describe each source of money and state the amount received from each during the past months ________________.

4. Do you have any cash or money in a checking or savings account? _______. If the answer is yes, state the total value owned. (C)

5. Do you own any real estate, stock, bonds, notes, automobiles, or other valuable property (including ordinary household furnishings and clothing)? ____. If the answer is yes, state the total value owned. ___________.

6. List the person(s) who are dependent on you for support, state your relationship to those person(s), and indicate how much you contribute toward their support at the present time. _______________________.

7. If you live in a rented apartment or other rented building, state how much you pay each month for rent. Do not include rent contributed by other people. _______________. (D)

8. State any special financial circumstances which the court should consider in this application. _________________________________________________________________.

I understand that a false statement or answer to any questions in this declaration will subject me to the penalties of perjury.

I declare under penalty of perjury that the foregoing is true and correct.

Explanation of Form:

In Part (A), you can use a slightly shortened version of the caption you used for your complaint. You only need to list the first plaintiff and defendant by name. The rest are included by the phrase “et al.” which is Latin for “and others.” You only need to add “et al.” if there is more than one plaintiff or defendant. However, be aware that if there is more than one plaintiff in your lawsuit, each plaintiff needs to file his or her own Application to Proceed in Forma Pauperis and Declaration.

In Part (B), if you have never been employed, just say that. If you have a job in prison, state that.

In Part (C), you should include any money you have in a prison account.

Some of these questions may sound weird, or not apply to you — Part (D) for example. However, answer them anyway. Like for question 7, just state that you do not live in an apartment.

Costs of Filing Your Lawsuit

Although the judge does not have to let you sue in forma pauperis, he or she almost always will if you show you are poor and your suit has a legal basis. You do not need to be absolutely broke. Even if you are given in forma pauperis status, you will still have to pay some money to the court.

Section 1915(b)(1) of Title 28 of the U.S. Code directs the judge to compare your monthly deposits and the average balance for your prison account. The judge will see which amount is larger — your monthly deposits or your prison account’s average balance. Then, the judge will decide that you must pay twenty percent (20%) of the larger amount right away. If twenty percent is less than $350, then Section 1915(b)(2) states that you must pay twenty percent of the monthly deposits to your account until the $350 is paid. If the court decides you are not poor or your suit is “frivolous,” it will return your legal papers and you will have to find a way to pay the full amount.

There are lots of benefits to gaining in forma pauperis status. You may avoid having to pay witness fees for depositions and at trial. If you appeal, you may not have to pay the costs of preparing transcripts. In addition, some courts have used Section 1915 to appoint a lawyer to represent a prisoner in a Section 1983 suit and even to pay the lawyer’s expenses. This is discussed in Part 3 of this section.

Unfortunately, in forma pauperis status affects only a very small part of the expense of your lawsuit. It will not pay for postage or for making photocopies, and it will not cover the costs of “pretrial discovery,” which is discussed in Chapter Six, Part E. However, you may be able to recover these expenses from the defendants if you win.

The Problem of Three Strikes:

The “three strikes provision” of the PLRA states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C.A. § 1915(g). This provision means that if you have had three complaints or appeals dismissed as “frivolous,” “malicious,” or “failing to state a claim,” you cannot proceed in forma pauperis. This means you will have to pay the entire filing fee up front, or your case will be dismissed. The only way to get around “three strikes” is to show you are in imminent danger of serious injury.

The PLRA is very specific about what dismissals count as strikes: these are dismissals for “frivolousness,” “maliciousness,” or “failure to state a claim.” Frivolous means that the court believes your suit is not serious or has no chance of winning. In legal terms, the court believes that your case has “no legal merit.” Malicious means that the court believes you are filing your suit only to get revenge or do harm to others, rather than uphold your rights. Failure to state a claim means that the court could not find any cause of action in your suit, which means that the facts you included in your complaint, even if true, do not amount to a violation of your rights.

A case dismissed on some other ground is not a strike. A summary judgment is not a strike. A “partial dismissal” – an order that throws out some claims, but lets the rest of the case go forward – is not a strike. A case that you voluntarily withdraw will usually not be considered a strike. A dismissal is not a strike if it is impossible to tell what the basis for the dismissal was. Dismissal in a habeas corpus action is not a strike.

Dismissals may be strikes even if you didn’t have in forma pauperis status for the case. Cases filed or dismissed before the PLRA was enacted have also been counted as strikes. Dismissals will not count against you until you have exhausted or waived all your appeals. At that point, if the court dismisses your case as “frivolous, malicious, or failing to state a claim upon which relief may be granted,” you will receive a strike.

The “three strikes provision” does not apply when a prisoner is in “imminent danger of serious physical injury.” “Imminent” means something is about to happen. To meet this requirement, the threatened injury does not need to be so serious as to be an Eighth Amendment violation. A risk of future injury is enough to invoke the imminent danger exception.

In conclusion, the “three strikes provision” means you will need to think more carefully about whether any litigation you may bring is well-founded and worth it. Once you are given a third strike, you will have to pay the entire filing fee of $350 up front before you can file a new lawsuit.

3. Request for Appointment Of Counsel

The in forma pauperis law, 28 U.S.C. § 1915(e)(1), allows a U.S. District Judge to “request an attorney to represent any person unable to afford counsel.” On the basis of this law, district judges have appointed lawyers for prisoners who filed Section 1983 suits on their own. Generally, when deciding whether or not to appoint a lawyer for you, the court will consider:

How well can you present your own case?

How complicated are the legal issues?

Does the case require investigation that you will not be able to do because of your imprisonment?

Will credibility (whether or not a witness is telling the truth) be important, so that a lawyer will need to conduct cross-examination?

Will expert testimony be needed?

Can you afford to hire a lawyer on your own?

These factors are listed in Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002). Some courts apply a test that asks whether the plaintiff is competent to try the case and if not, whether an attorney would make a difference in the outcome. Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993).

Unfortunately, appointment is usually at the “discretion” of the judge, which means that if a judge doesn’t want to appoint you an attorney, he or she doesn’t have to, and you are unlikely to be able to challenge that by an appeal. On the other hand, there have been a few rare cases in which a court held that a judge abused this discretion. In Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005), the Court of Appeals decided that the judge abused his discretion because the plaintiff’s case would likely require expert testimony and the plaintiff would have to serve process on seven defendants. In Parham v. Johnson, 126 F.3d 454, 461 (3d Cir. 1997), another Court of Appeals said that “where a plaintiff’s case appears to have merit and most of the aforementioned factors have been met, courts should make every attempt to obtain counsel.” In general, whether you will be appointed counsel has a lot to do with how strong your case looks to a judge. If the judge thinks your case has no merit, he or she will not want to appoint counsel.

The best procedure is to request appointment of counsel at the same time you request in forma pauperis status. If you can get an appointment of counsel form from the district court, use that form. If there is no form for this request in the pro se packet, use the following form:

IN THE UNITED STATES DISTRICT COURT FOR THE ____________________
————————————–x
Name of the first plaintiff, et al.,
Plaintiffs,

v.

Name of the first defendant, et al.,
Defendants
—————————————x
MOTION FOR APPOINTMENT OF COUNSEL

Pursuant to 28 U.S.C. § 1915(e)(1) plaintiff (or plaintiffs) moves for an order appointing counsel to represent him in this case. In support of this motion, plaintiff states:

1. Plaintiff is unable to afford counsel. He has requested leave to proceed in forma pauperis.

2. Plaintiff’s imprisonment will greatly limit his ability to litigate. The issues involved in this case are complex, and will require significant research and investigation. Plaintiff has limited access to the law library and limited knowledge of the law. (A)

3. A trial in this case will likely involve conflicting testimony, and counsel would better enable plaintiff to present evidence and cross examine witnesses.

4. Plaintiff has made repeated efforts to obtain a lawyer. Attached to this motion are ____________________________________. (B)

WHEREFORE, plaintiffs request that the court appoint__________________, a member of the ________ Bar, as counsel in this case. (C)

___________________
Date

___________________
Signature, print name below

___________________
Address

Explanation of Form:

The caption at the top is the shortened form explained above, but here the title will be “Motion for Appointment of Counsel.”

In Part (A), you can include any facts in this motion that you think will help convince the court that you need a lawyer. For example, you could add that you are in administrative segregation, that your prison doesn’t have a law library, or that it takes weeks to get a book. If you have limited formal education, you could state that too.

In Part (B) you need to describe the evidence that you will attach to show that you have tried to get a lawyer. Copies of letters lawyers have sent you, or you have sent them (if not confidential), should be enough.

Only ask for a specific lawyer in part (C) if there is a lawyer who you know and trust. If you do have a relationship like this, list the lawyer’s name, and the state where he or she is admitted to practice law. If the judge decides to appoint a lawyer for you, he or she does not have to appoint the one you suggest, but this may well be the easiest and most convenient thing for the judge to do. And it is obviously very important that the lawyer appointed for you be someone you can trust, who is clearly on your side.

If the court denies your request at that time, or simply ignores it, be sure to try again after the court has denied the prison’s Motion to Dismiss your complaint and again after their Motion for Summary Judgment. These motions are explained in Chapter Six, Sections C and F. The court may be more willing to appoint counsel after it has ruled that you have a legitimate case. To renew your motion, use the same form as above.

4. Declarations

At the beginning of or during your case, you may also want to submit declarations. A “declaration” is a sworn statement of facts written by someone with personal knowledge of those facts, which is submitted to the court in a certain form. The following is an example of what a declaration might look like in the case of Hey v. Smith, which we used as an example in the sample complaint found in Appendix B.

In the United States District Court For the Northern District of Illinois
——————————————-x
Hey, et al.,
Plaintiffs,

v.

Smith, et al.,
Defendants
——————————————-x

DECLARATION : OF SAM JONES
Civil Action No. 09-cv-86

Sam Jones hereby declares:

I have been incarcerated at Illinois State Prison since 2005. Since March of 2006 I have been housed in Block D. I am currently in cell 203, which is directly next to cell 204. Walter Hey and Mohammed Abdul are currently in cell 204, and have been for several months.

On June 30, 2009, I saw Officer Thomas approach cell 204, and enter the cell. A few minutes later, I heard loud voices, a thud, and heard Walter Hey cry out. It sounded like he was in pain.

A few days later, I noticed Warden Smith standing in front of Hey and Abdul’s cell, looking in. He remained there for approximately 5 minutes, and then left.

I declare under penalty of perjury that the foregoing is true and correct. Executed at Colby, IL on July 15, 2009.

Sam Jones

If your suit has several plaintiffs, each of you should make out a separate statement of the details of all the facts you each know. This statement does not need to be “notarized.” Just put at the bottom: “I declare under penalty of perjury that the foregoing is true and correct. Executed on (date) at (city and state).” Then sign. This can also be called a “declaration under penalty of perjury.” It is acceptable in any federal court and most state courts.

The declaration is made and signed by the person who knows the relevant facts. This could be anyone: it does not have to be from you or another plaintiff. It is helpful to submit declarations from other people who were witnesses to events that you describe in your complaint or who know facts that you need to prove. These declarations may be important when prison officials move for summary judgment against you. Summary judgment is explained in Chapter Six, Section F.

You can submit declarations from plaintiffs or other people along with your complaint. Each declaration is an “exhibit” in support of the complaint and each exhibit has its own letter – “Exhibit A,” “Exhibit B,” etc. You can also submit letters from prison officials, copies of rules, and any other relevant document as lettered exhibits. You can refer to these exhibits when you state the facts of your case in your complaint. You do not have to submit declarations or other evidence when you file a complaint. But considering how frequently judges dismiss or discredit prisoner complaints, if you have strong support for your facts, it may be in your best interests to show the court right away.

Importance of Declarations

It is always helpful to submit declarations. You can submit them anytime you get them. If there are people who were witnesses to events that you describe in your complaint, or who know facts that you need to prove, ask them to fill out and sign a declaration. It will help strengthen your suit and can stop prison officials from getting “summary judgment” against you.

You can also submit declarations later in your suit. You can submit declarations any time you get them. In some situations, which will be explained later in this Handbook, you are required to submit declarations from yourself and other plaintiffs.

Remember to include your Civil Action Number, if you have received one, on any papers filed after your initial complaint.